State v. Fant , 329 Or. App. 802 ( 2023 )

802 December 28, 2023 No. 688
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
WESLEY FANT,
Defendant-Appellant.
Multnomah County Circuit Court
20CR65390; A178896
Steffan Alexander, Judge.
Submitted November 13, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Hadlock, Judge pro tempore.
AOYAGI, P. J.
Affirmed.
Nonprecedential Memo Op: 329 Or App 802 (2023) 803
AOYAGI, P. J.
Defendant was convicted of unlawful possession of
a firearm, ORS 166.250(1). On appeal, in three assignments
of error, he contends that the trial court plainly erred by
failing to intervene sua sponte, despite the lack of an objec-
tion by defense counsel, when the prosecutor made state-
ments during rebuttal closing that, in defendant’s view,
“denigrated defense counsel and contained the prosecutor’s
personal opinions,” thus denying defendant a fair trial.1
Specifically, in response to defense counsel’s argument in
closing that the issue before the jury was “nuanced” and
involved “a confusing law that invites hairsplitting,” the
prosecutor described the evidence, stated that it was the
“[d]efense’s job to confuse things and complicate things, and
he’s right, I am gonna tell you that this is a fairly straight-
forward case, in my opinion,” then asked the jury to “follow
the law and the instructions by the judge and find the defen-
dant guilty.”
Under State v. Chitwood, 370 Or 305, 518 P3d 903
(2022), a trial court is obligated to intervene sua sponte
during a prosecutor’s closing argument and declare a mis-
trial, notwithstanding the lack of any objection by the defen-
dant, only when it is “beyond dispute that the prosecutor’s
comments were so prejudicial as to have denied defendant a
fair trial.” 370 Or at 312 (internal quotation marks omitted).
Further, “a defendant asserting plain error must demon-
strate that the prosecutor’s comments were so prejudicial
that an instruction to disregard them would not have been
sufficiently curative to assure the court, in its consideration
of all the circumstances, that the defendant received a fair
trial.” Id. “In other words, prosecutorial statements that
were improper but curable are not an appropriate subject
of plain-error review, because, in such circumstances, the
defendant was not denied a fair trial.” State v. Durant, 327
1
“Generally, an issue not preserved in the trial court will not be considered
on appeal.” State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000). However, we have
discretion to correct a “plain” error. ORAP 5.45(1). An error is “plain” when it is
an error of law, the legal point is obvious and not reasonably in dispute, and the
error is apparent on the record without our having to choose among competing
inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). It is a matter
of discretion whether we will correct a plain error. State v. Gornick, 340 Or 160,
166, 130 P3d 780 (2006).
804 State v. Fant
Or App 363, 365, 535 P3d 808 (2023) (emphasis in origi-
nal). That is important because, “[g]enerally, a proper jury
instruction is adequate to cure any presumed prejudice from
a prosecutor’s misconduct.” State v. Davis, 345 Or 551, 583,
201 P3d 185 (2008), cert den, 558 US 873 (2009).
Here, we are unpersuaded that the court plainly
erred in failing to intervene sua sponte to declare a mistrial.2
With regard to the statement that it was the defense’s “job
to confuse things and complicate things,” the prosecutor’s
choice of words was inappropriate, but the point that he was
trying to make was a fair one and a permissible argument—
that neither the statute nor the case was as complicated as
the defense had just argued—and, in context, it does not
appear that the prosecutor intended to denigrate defense
counsel. We are unpersuaded that the statement was uncur-
able, even if objectionable. As for the use of the words “in my
opinion,” the context suggests that the prosecutor was using
colloquial language to convey the state’s position that this
was a fairly straightforward case, not literally expressing
his own personal opinion.
Accordingly, we reject defendant’s claim of plain
error.
Affirmed.
2
Defendant asserts in a footnote in his opening brief that the trial court
plainly erred in failing to either give a curative instruction or declare a mistrial.
However, under Chitwood, there is no plain error if a curative instruction would
have adequately addressed the situation. We therefore limit our discussion to the
mistrial issue.